BOQ Equipment Finance Ltd v For Ball Pty Ltd
[2015] QDC 105
•12 May 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
BOQ Equipment Finance Ltd v For Ball Pty Ltd & Ors [2015] QDC 105
PARTIES: BOQ EQUIPMENT FINANCE LIMITED (ACN 008 492 582)
(applicant)
v
FOR BALL PTY LTD (ACN 101 400 024)
(first respondent)
and
BALL REFRIGERATED PTY LTD (ACN 101 402 715)
(second respondent)
and
PETER JOHN BALL
(third respondent)FILE NO/S: 895 of 2015 DIVISION:
Civil
PROCEEDING:
Application on the papers
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
12 May 2015
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Reid DCJ
ORDER:
The application is dismissed.
CATCHWORDS:
APPLICATION – Substituted service – inadequate evidence to prove defendant’s place of residence and telephone number
The plaintiff applies for an order on the papers for substituted service of originating proceedings upon the third defendant, Peter John Ball. The proceedings involve a claim for money owed pursuant to a rental contract (a Specific Security Agreement Loan) between the plaintiff and the first defendant in relation to a Kenworth vehicle.
The second and third defendants entered into written Guarantee and Indemnity contracts in relation to that agreement. Because of the first defendant’s default, all three defendants are now sued.
The first and second defendants have been served. Despite efforts by a process server to serve the third defendant at 4623 The Parkway, Sanctuary Cove, that has not been achieved.
The affidavit material on which the plaintiff relies is inadequate. So far as I can see, it contains no basis for the assumption that the third defendant lives at 4623 The Parkway, Sanctuary Cove, which is where the process server has attended on three occasions – namely 9, 15, 31 March 2015. On each occasion, the affidavit of attempted service attached to an affidavit of the plaintiff’s solicitor, indicates he attempted to phone the third defendant on a mobile number. There is no evidence linking this number to the third defendant.
ASIC searches attached to affidavits of service upon the first and second defendant indicate the address for Peter John Bell, the named third defendant, as 1028 Edgecliff Drive, Sanctuary Cove. The date the ASIC search was conducted is not disclosed. The address is different to what the process server has attended.
I could find no evidence linking the third defendant to the address where service was attempted, or with the phone number on which the process server attempted to contact him. The submissions of the applicant make no attempt to explain those matters.
In the circumstances, I cannot conclude either:
(i) that it is impracticable to serve the third defendant; or
(ii) that service in the way proposed is likely to bring the documents to the attention of the third defendant; or
(iii) that, as was submitted, the third defendant is avoiding service.
It may be the case he is doing so, and that it is impracticable to serve the third defendant, but the material does not allow me to conclude positively any of the three matters referred to above.
The application is dismissed.
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